Changes Coming to the Illinois Health Care Right of Conscience Act to Close COVID loophole… in June 2022

Author: Becky Canary-King

The Illinois legislature has approved an amendment to the Health Care Right of Conscience Act (“HCRC”) which would limit employees’ ability to use the law to avoid workplace vaccination mandates.

HCRC, which was enacted in 1977, prohibits discrimination against individuals for their “conscientious refusal” to receive “any particular form of health care services contrary to his or her conscience.” The Act also makes it unlawful for employers to impose any burdens in terms or conditions of employment on, or to otherwise discriminate against, any applicant for the applicant’s refusal to receive any form of health care services contrary to his or her conscience.

The original intent of the bill was to allow health care providers to refuse to provide contraceptives or abortion services if it violated their conscience. However, some individuals have argued that the broad language of HCRC provides a shield for employees to avoid COVID-19 testing and vaccination mandates.

The Amendment would add language stating that it is not a violation of the Act to institute and enforce COVID-19 requirements in the workplace and other institutions. The proposal does not interfere with employees’ right to receive reasonable accommodations for their sincerely held religious beliefs.

Governor J.B. Pritzker is expected to sign the amendment, which would go into effect in June 2022.

EEOC Issues New Guidance on Religious Objections to COVID-19 Vaccine Mandates

Author: Laura Friedel

On Monday, October 25, 2021, the EEOC released much-awaited guidance on how employers should handle employee requests to be exempted from vaccination requirements because of religious beliefs. The new guidance is in the new Section L of the EEOC’s Technical Assistance.  Here are some highlights:

  • Employees must tell their employer if they are requesting an exception to COVID-19 vaccination requirements because of a conflict between that requirement and their sincerely held religious beliefs, practices or observances.  However, they don’t have to use any “magic words” in making their request.
  • Employers should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, if the employer has an objective basis for questioning either the nature or the sincerity of a stated belief, they can make a limited factual inquiry and seek supporting information. 
  • The definition of “religion” under Title VII includes both traditional religious beliefs and non-traditional religious beliefs, but it does not include political, social or economic views or personal preferences.  Employees may be asked to explain the nature of their belief that requires the accommodation.
  • Even if an employee’s sincerely held religious belief prohibits them from being vaccinated, the employer can still refuse to provide an exception to a vaccine mandate if it would cause the employer an “undue hardship.”  While the EEOC notes that in many cases it is possible to accommodate employees’ requests for exceptions to a vaccine mandate (for instance, by allowing work-from-home or requiring the employee to take extra measures (such as frequent testing), it also acknowledges that an employer can’t be required to bear more than a “de minimis” cost in accommodating an employee’s religious belief – for instance, if it would impair workplace safety, diminish efficiency or cause coworkers to carry the employee’s share of potentially hazardous or burdensome work.  The key here is that it is a very fact-specific inquiry, so employers should analyze each request individually, rather than setting a broad rule.
  • Just because one employee is granted an exception from a COVID-19 vaccine mandate doesn’t mean that it needs to be granted to others.  Again, the key is the particular facts and circumstances, so employers should look at the employees’ duties, how many people they come into contact with, etc.
  • Even where an employer is required to provide an accommodation, it is not required to provide the particular accommodation requested by the employee.  So if there’s another accommodation available that would allow the employee to perform their duties and would not cause an undue hardship, it can be offered, even if it’s not the accommodation the employee requested.
  • Employers may revisit accommodations based on changed circumstances, but as a best practice, any changes should be discussed with the employee in advance so that alternate accommodations can be considered.

What is clear from the EEOC’s guidance is that requests for exceptions to vaccine requirements for religious reasons need to be considered on a case-by-case basis. It is also important to consider state and local requirements that may limit vaccine mandates.  As such, we recommend consulting with an employment attorney in responding to such requests.

Illinois Mask Mandate: What Employers Need to Know

Author: Becky Canary-King

Effective Monday, August 30, Illinois Governor J.B. Pritzker issued Executive Order 2021-20, which requires all individuals in Illinois age two or older who are able to medically tolerate a face covering to wear a mask in indoor public spaces, regardless of vaccination status. 

Under the Executive Order, “indoor public spaces” include offices and other workplaces, though it does provide that employees may remove their masks when they can consistently maintain six feet of distance (such as in their office or cubicle).

For employers who have returned employees to the workplace, this means that masking requirements should be reviewed or reissued. Any mask policy should require all employees to wear masks while indoors, regardless of vaccination status, except when they can consistently maintain six feet of distance (such as when workers are in their office or cubicle space). The Order contains additional requirements for health care workers, schools, and government facilities. 

Notably, the Order also makes clear that it does not prohibit employers from implementing vaccination or testing requirements for employees, contractors, or other visitors that exceed the requirements of this Executive Order. 

The Labor and Employment Group at Levenfeld Pearlstein regularly helps businesses formulate COVID-19 policies for their workforces. If you’re interested in discussing this Order or any other COVID-19 requirements, please reach out. 

Masking Requirements in the Workplace: What Employers Should Consider

Author: Becky Canary-King

The CDC has lifted mask requirements for vaccinated individuals, what does that mean for employers?

Earlier this month, the CDC issued new guidance that Fully Vaccinated individuals can resume activities without wearing a mask or social distancing, except where required by state or local guidelines. Illinois and Chicago subsequently issued new orders affirming that individuals who are Fully Vaccinated are not required to wear a mask. “Fully Vaccinated” means:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Options for Employees

Given these recent changes, Illinois employers now have a choice: to change their workplace rules to allow Fully Vaccinated individuals to go “maskless,” or they can keep current masking requirements in place (either temporarily or for a longer period). Of course, employers with employees outside Illinois need to check state and local requirements for the locations where they have employees.

Employers who wish to allow Fully Vaccinated employees to not wear a mask in the workplace are required to confirm that an employee is, in fact, Fully Vaccinated, prior to allowing them to go maskless.  This can be accomplished by requiring employees to present proof of vaccination or by requiring that employees certify that they are Fully Vaccinated. As a reminder, the information provided to confirm vaccination status needs to be treated as confidential medical information.

Because of issues around confidentiality, we recommend that employers who are not mandating that employees be vaccinated make clear that while Fully Vaccinated individuals may request to go maskless by submitting the requested documentation, it is their choice. In other words, regardless of vaccination status, employees will be required to wear a mask unless they request to go maskless and provide the required documentation. 

Employers should also be aware that the Chicago ordinance that allows Fully Vaccinated employees to go maskless also requires that employers have all employees who are reporting to the workplace to self-certify each day or shift that they are free of COVID-19 symptoms.

Options for Members of the Public

Under these new Illinois standards, employers also have the obligation to “seek to ensure” that customers who are not Fully Vaccinated wear a mask. It’s not clear from the Governor’s order whether this means that employers are required to independently confirm vaccination status prior to allowing a customer or visitor to be maskless in the workplace. Currently, large restaurants and retailers have taken different approaches to public masking requirements, but the fact remains that employers’ general duty to maintain a safe workplace continues to apply and should be considered before changing customer mask requirements. 

Looking Forward

Illinois Governor J.B. Pritzker announced that Illinois plans to fully reopen and enter Phase 5 of its COVID plan on June 11, “barring any significant reversals in our key COVID-19 statewide indicators.” Governor Pritzker has indicated that Illinois will continue following the CDC’s masking guidelines in Phase 5.

Navigating the Vaccine: Considerations Employers Should Keep in Mind

Author: Labor & Employment Group

Whether your business chooses to require the vaccine or allow employees to get vaccinated at their option, all employers are facing new challenges managing through this phase of the pandemic. Below are some considerations employers should be keeping in mind:

  • Continue to Require Safety Measures. The CDC continues to recommend employers require social distancing, face masks, and other safety measures in the workplace. While the CDC has indicated that fully vaccinated individuals can gather in small groups, it has not revised its recommendations regarding workplace safety.
     
  • Provide Resources for Employees. Many individuals are still having difficulty finding and traveling to vaccine appointments. Employers requiring or encouraging vaccination should consider what resources they can provide to assist employees with the process. Options include sharing local resources for appointment scheduling, providing time off, and providing other monetary incentives such as gift cards for employees who get vaccinated.
     
  • Consider Remote Work Options Moving Forward. With many employees working remotely for the first time during the pandemic, we anticipate greater demand for remote work moving forward. Employers should take time now to consider whether they will allow ongoing remote work once all employees can safely return to the workplace, and the potential implications for hiring and retention.

For more questions on COVID-19 vaccination policies in the workplace, please contact any member of our Labor and Employment team.

FFCRA Extended to Cover Leave Related to COVID Vaccines through September 31 – At Employer’s Option

While FFCRA leave remains voluntary, the American Rescue Plan Act of 2021 gives employers the option to continue providing Emergency Paid Sick Leave (EPSL) and Extended FMLA Leave (EFMLA) to employees through September 30, 2021.

Beginning April 1, 2021, if an employer elects to provide FFCRA leave, employees may now use such leave for (1) obtaining the COVID-19 vaccine; (2) recovering from any illness or condition related to getting the vaccine; or (3) seeking or awaiting the result of a COVID-19 test if the employee has been exposed to COVID-19 or the employer has requested the COVID-19 test. Employees’ available leave is also reset on April 1, so employees are eligible for up to 10 days of EPSL and 10-weeks of EFMLA between April 1 and September 30, 2021.

Employers are not required to provide FFCRA leave, but will be eligible for payroll tax credits if they do so and otherwise follow the requirements of the FFCRA. Providing this paid leave is a great option for employers seeking to require or encourage employees to get the COVID-19 vaccine.

OSHA Issues Updated COVID-19 Guidance

Author: Becky Canary-King

TheOccupational Safety and Health Administration (OSHA) recently issued new guidance on mitigating and preventing the spread of coronavirus in the workplace. The guidance outlines best practices and recommendations for employers to identify risks of being exposed to and of contracting COVID in workplace settings. OSHA’s recommended steps to implement a COVID prevention program include:

  • Assign a workplace coordinator for COVID
  • Conduct a hazard assessment to identify where and how workers might be exposed to COVID and eliminate or implement control measures to reduce workplace hazards
  • Educate workers on COVID policies and procedures, establish a system of communicating to workers in a language they understand, and encourage two-way communication
  • Instruct infected or potentially infected workers to stay home
  • Perform enhanced CDC-compliant cleaning and disinfecting
  • Appropriately record and report COVID-19 infections
  • Make the COVID-19 vaccine available at no cost to all eligible employees. Require vaccinated employees to continue to follow protocols, as there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.

Like previous OSHA guidance, this is not a standard or regulation, and it creates no new legal obligations for employers. Rather, employers are required under the General Duty Clause to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

What the Updated CDC Quarantine Recommendations Mean for Employers

Author: Becky Canary-King

The CDC recently updated its guidance to provide recommendations for reducing the quarantine period after an individual has had close contact with someone with COVID-19. Close contact includes:

  • Being within 6 feet of someone who has COVID-19 for a total of 15 minutes or more
  • Providing care at home to someone who is sick with COVID-19
  • Direct physical contact with the person (hugged or kissed them)
  • Sharing eating or drinking utensils
  • Exposure to respiratory droplets, such as through coughing or sneezing

Individuals who have had COVID-19 within the past three months do not need to quarantine again.

While the CDC still endorses 14 days as optimal length for quarantine, the new guidance provides two options to discontinue quarantine earlier:

  • After day 10 without testing
  • After day 7 after receiving a negative test result (test must occur on day 5 or later)

If the quarantine period is reduced, employees should be directed to continue monitoring symptoms for 14 days post-exposure.

Employers may choose to continue to require employees to quarantine for 14 days after an exposure and should continue to follow any state or local requirements. However, these new CDC-approved options may reduce the burden placed on employees and employers by lengthy periods of quarantine.

For more information regarding potential exposures in the workplace and other COVID-related issues, please see information provided in our webinar on practical tips for COVID-related workplace issues.

The Labor & Employment Attorneys at Levenfeld Pearlstein are here to help with your COVID-19 employment-related questions, and other labor and employment needs as well.

Can Employers Require Employees to Get the COVID-19 Vaccine?

Authors: Becky Canary-King and Laura Friedel

Likely, yes, but employers must consider accommodation requests.

While we have not received clear guidance from government authorities on administering or requiring the COVID-19 vaccine, we hope to receive such guidance once the vaccine becomes available to the general population. Of course, government guidance necessarily will guide how employers proceed.

As the law stands now, employers will likely be able to require that employees get vaccinated for COVID. However, employers will have to consider accommodation requests from employees for medical reasons, religious reasons, or pregnancy. What is reasonable, as always, will depend on the circumstances. Employers will have a strong argument that having an unvaccinated employee would cause an undue burden and/or direct threat to other employees, and therefore no accommodation is required by law. Unfortunately, that argument has not yet been tested as related to COVID-19.

Employers will also need to check state and local law for prohibitions. For employers who choose to require the vaccine, we recommend that the employer pay for the vaccine itself and for the time spent getting it.

LP will continue to monitor guidance related to administering the vaccine and update the answer to this question accordingly.

The Latest From Chicago: Anti-Retaliation, Fair Workweek, and Food Delivery Disclosures

While warm weather has finally hit Chicago, Mayor Lightfoot, the City Council and Chicago Department of Business Affairs and Consumer Protection (BACP) have not taken a spring break. The below summarizes the latest ordinances, and regulations from the Windy City:

Anti-Retaliation Ordinance

The Chicago City Council passed the COVID-19 Anti-Retaliation Ordinance last week, which prohibits employers from retaliating against employees for obeying a public health order requiring an employee to stay home due to coronavirus.

The Ordinance prohibits employers from demoting or terminating a Covered Employee for obeying an order issued by the Mayor, the Governor of Illinois, the Chicago Department of Public Health, or, in the case of (2), (3), and (4) below, a treating healthcare provider, requiring the Covered Employee to:

  • Stay at home to minimize the transmission of COVID-19;
  • Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
  • Obey a quarantine order issued to the Covered Employee;
  • Obey an isolation order issued to the Covered Employee; and
  • Obey an order issued by the Commissioner of Health regarding the duties
  • of hospitals and other congregate facilities

Employees subject to demotion or termination may recover reinstatement, damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place, actual damages, and attorneys’ fees. Violations may also lead to fines of up to $1,000 per offense per day.

The ordinance is effective immediately.

Fair Workweek Ordinance

Chicago’s Fair Workweek Ordinance is set to take effect on July 1, 2020. Ahead of the effective date, the BACP has issued rules for implementing the ordinance, and a supplemental rule for implementation during the pandemic.

The Ordinance requires covered employers to post work schedules at least 10 days in advance, and provide additional pay if work schedules are changed without advanced notice. However, the Ordinance creates an exception where the work schedule change is “because of” a pandemic. BACP’s supplemental rule clarifies that the COVID-19 outbreak qualifies as a “pandemic” for the purposes of this exception, and will remain a “pandemic” until the Mayor’s Executive Order declaring a state of emergency is repealed.    

However, a work schedule change will be considered “because” of the pandemic only when the pandemic causes the employer to materially change its operating hours, operating plan, or the goods or services provided by the employer, resulting in the work schedule change. Further, the exception applies only to the work schedule during which the change occurs, and the work schedule immediately following.

Additionally, while the substantive requirements of the Ordinance will still go into effect on July 1, 2020 and may still be enforced by the City, individual employees will not be allowed to file lawsuits for violations of the ordinance occurring before January 1, 2021.

New Rules for Third Party Food Delivery Companies

Mayor Lightfoot and the BACP announced new rules earlier this month for third-party food delivery companies to increase transparency and fair competition. Effective Friday, May 22nd, all third-party delivery companies must disclose the following to customers, in a “clear and conspicuous manner”:

  • the menu price of the food;
  • any sales or other tax applied to the transaction;
  • any delivery charge or service fee, imposed on or collected from the customer by the third-party food delivery service or by the covered establishment, in addition to the menu price of the food;
  • any tip that will be paid to the person delivering the food, and not to the third-party food delivery service, to be added into the transaction when it occurs, and
  • any commission associated with the transaction.

The disclosure requirements apply to all websites, mobile applications or other internet services that offer or arrange the sale of food or beverages by a restaurant, bar or other food-serving establishments. The measure is intended to promote transparency and fair competition, as many restaurants are increasing relying on third-party delivery services to stay afloat during the pandemic.

While the rules were promulgated in response to the pandemic, these new rules will be in place permanently.

Guidance for Restaurants Applying COVID Surcharges

The City of Chicago issued a guidance for restaurants charging COVID-related surcharges to customers, reminding restaurants that the City’s restaurant tax is .50%, and any surcharge customers are required to pay is considered taxable and should be included in the basis upon which the restaurant tax is calculated. Additionally, a COVID surcharge is not a tax and should not be designated as such on any price list or invoice.